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HomeMy WebLinkAbout26-529 McGoniglePHONE: 717-783-1610 TOLL FREE: 1-800-932-0936 To the Requester: Deborah McGonagle Dear Ms. McGonagle: STATE ETHICS COMMISSION FINANCE BUILDING 613 NORTH STREET, ROOM 304 HARRISBURG, PA 17120-0400 FACSIMILE: 717-787-0806 WEBSITE: www.ethics.pa.gov ADVICE OF COUNSEL May 4, 2026 26-529 This responds to your email received April 17, 2026, which will be treated as a request for an advisory from the Pennsylvania State Ethics Commission ("Commission") as to the issue presented below: Issue: Whether, as a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant) in the IT Infrastructure Services Department of West Chester University ("the University"), you are a "public employee" subject to the Public Official and Employee Ethics Act ("Ethics Act"), 65 Pa.C.S. § 1101 et sec.., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sec and particularly, the requirements for filing Statements of Financial Interests. Brief Answer: YES. Upon review of the job description for your position with the University, as a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant) in the IT Infrastructure Services Department, you are a "public employee" subject to the provisions of the Ethics Act and the Regulations of the State Ethics Commission, and you are therefore required to file Statements of Financial Interests pursuant to the Ethics Act. Facts: Since March 2020, you have been employed as a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant) in the IT Infrastructure Services Department of the University. Your job responsibilities have not changed in the last six years. Until this year, the University had not required you to file a Statement of Financial Interests form. You believe that you may have been requested to file the form this year due to confusion MCGonigle, 26-529 May 4, 2026 Page 2 arising from an administrative error that caused your University email address to be used to set up six credit cards that were issued in the names of managers in your University department. Aside from this error, which has since been corrected, you do not believe that you would meet any of the criteria that would bring someone within the definition of the term "public employee" under the Ethics Act. You seek guidance as to whether, as a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant) in the IT Infrastructure Services Department of the University, you are a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission, and in particular, the requirements for filing Statements of Financial Interests. You have submitted a copy of a Staff Job Description/Performance Standards ("the Job Description") for your position with the University, which document is incorporated herein by reference. Per the Job Description, the responsibilities of a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant) in the IT Infrastructure Services Department include the following: • Providing administrative support to the Executive Director of IT Infrastructure Services; • Providing administrative services for the IT Infrastructure Services Department, including but not limited to opening work orders with respective campus departments to maintain facilities, conducting record -keeping for service provider invoicing, and maintaining adequate office supplies; • Handling the ordering of hardware, software, support and maintenance for all IT Infrastructure Services equipment and services; • Preparing and organizing individual and bulk purchases for the IT Infrastructure Services Department as directed by the Executive Director and following up with vendors as needed; • Monitoring, managing, and maintaining IT Infrastructure Services maintenance, support and subscription contract renewals; • Preparing, processing, and monitoring the progress of PDRs; • Preparing, organizing, and processing reconciliations and reports for departmental purchasing cards (p-cards); • Working independently and contacting vendors for technical equipment and software information on IT equipment; • Preparing, organizing, and processing monthly telephone, cellphone, and work order chargebacks for self-support services; • Preparing, organizing, reviewing, and processing monthly service provider invoices for voice and data services; • Compiling reporting and analysis to identify areas for process improvement within the IT Infrastructure Services Department; • Maintaining documentation, tracking, reporting, and asset management for all IT infrastructure; • Working with the Executive Director of IT Infrastructure Services to plan, prepare, review, and update the five-year budgetary documents to appropriately forecast IT MCGonigle, 26-529 May 4, 2026 Page 3 infrastructure funding requirements and associated requests for annual increases/decreases; and • Serving as a backup for providing administrative services to the IS&T Senior Associate Vice President Office as needed. Job Description, at 1. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevantto the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Section 1104(a) of the Ethics Act provides, in pertinent part, that any public official or public employee of the Commonwealth or a political subdivision must file a Statement of Financial Interests for the preceding calendar year by May 1 of each year that he holds the position and the year after he leaves the position: § 1104. Statement of financial interests required to be filed (a) Public official or public employee. --Each public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the commission no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Each public employee and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee or public official shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed or within which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Persons who are full-time or part-time solicitors for political subdivisions are required to file under this section. 65 Pa.C.S. § 1104(a). The Ethics Act defines the term "public employee" as follows: MCGonigle, 26-529 May 4, 2026 Page 4 § 1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. MCGonigle, 26-529 May 4, 2026 Page 5 (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary -treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: MCGonigle, 26-529 May 4, 2026 Page 6 (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the person's own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a "public employee" subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act's definition of the term "public employee" and the related regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04-002; Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission's objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS 8 (Pa. Cmwlth. January 5, 2010), allocator denied, 607 Pa. 708, 4 A.3d 1056 (2010); Phillips, supra. The first portion of the statutory definition of "public employee" includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. Code § 11.1 ("public employee")(ii), include not only individuals with authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent MCGonigle, 26-529 May 4, 2026 Page 7 to final decision -makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-005. Conclusion: In applying the objective test in the instant matter, the necessary conclusion is that in your capacity as a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant) in the IT Infrastructure Services Department of the University, you are a "public employee" subject to the Ethics Act. It is clear that as a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant), you have the ability to take or recommend official action of a nonministerial nature with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, your authority to: • Open work orders with respective campus departments to maintain facilities and conduct record -keeping for service provider invoicing; • Handle the ordering of hardware, software, support and maintenance for all IT Infrastructure Services equipment and services; • Prepare and organize individual and bulk purchases for the IT Infrastructure Services Department as directed by the Executive Director and follow up with vendors as needed; • Monitor, manage, and maintain IT Infrastructure Services maintenance, support and subscription contract renewals; • Prepare, organize, and process reconciliations and reports for departmental purchasing cards (p-cards); • Work independently and contact vendors for technical equipment and software information on IT equipment; • Prepare, organize, and process monthly telephone, cellphone, and work order chargebacks for self-support services; • Prepare, organize, review, and process monthly service provider invoices for voice and data services; • Maintain documentation, tracking, reporting, and asset management for all IT infrastructure; and • Work with the Executive Director of IT Infrastructure Services to plan, prepare, review, and update the five-year budgetary documents to appropriately forecast IT infrastructure funding requirements and associated requests for annual increases/decreases, would be sufficient to establish your status as a "public employee" subject to the Ethics Act. The foregoing duties/authority would also meet the criteria for determining your status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii). McGonigle, 26-529 May 4, 2026 Page 8 Therefore, you are advised that as a Management Technician (IT Infrastructure Services Coordinator and Administrative Assistant) in the IT Infrastructure Services Department of the University, you are a "public employee" subject to the provisions of the Ethics Act, and you are therefore required to file Statements of Financial Interests pursuant to the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Respectfully, Q Bridget K. Guilfoyle, Chief Counsel